Citation Nr: 0206215
Decision Date: 06/12/02 Archive Date: 06/20/02
DOCKET NO. 96-34 853 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for a
back disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. A. Speck, Associate Counsel
INTRODUCTION
The veteran had active service from June 1957 to May 1959.
The veteran's claim comes before the Board of Veterans'
Appeals (Board) on appeal from a May 1996 rating decision of
the Department of Veteran's Affairs (VA) Regional Office (RO)
in Chicago, Illinois.
This claim was previously before the Board and in a September
1997 decision, it was remanded to the RO for additional
development. That development has been completed, and the
claim is once again before the Board for appellate review.
FINDINGS OF FACT
1. A September 1985 Board decision denied service connection
for a back disorder.
2. The evidence associated with the claims file subsequent to
the Board's September 1985 decision is new and so significant
that it must be considered in order to fairly decide the
merits of the veteran's claim.
3. The evidence of record does not demonstrate a causal
relationship between the veteran's current back disorder and
any incident of military service.
CONCLUSIONS OF LAW
1. The Board's September 1985 decision denying service
connection for residuals of a back disorder is final. 38
U.S.C.A. § 7104 (West 1991 & Supp. 2001); 38 C.F.R. § 20.1100
(2001)
2. New and material evidence has been presented to reopen a
claim of entitlement to service connection for a back
disorder. 38 U.S.C.A. §§ 5108, 7104 (West Supp. 2001); 38
C.F.R. §§ 3.156(a), 20.1105 (2001).
3. A back disorder was not incurred in or aggravated by
active service nor may arthritis be presumed to have been so
incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103,
5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303,
3.304, 3.307, 3.309 (2001); 66 Fed. Reg. 45,620, 45630-32
(Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§
3.102 and 3.159).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran requests that the Board reopen and grant his
claim of entitlement to service connection for a back
disorder on the basis that he has submitted new and material
evidence. The Board observes that the veteran's claim of
service connection was addressed in a September 1985 Board
decision and service connection was denied. That decision is
final. See 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. 20.1105
(2001). In March 1996, the veteran filed to reopen his
claim. A May 1996 rating decision denied reopening the claim
on the basis that new and material evidence had not been
submitted. The veteran disagreed with that decision and
initiated a timely appeal. As there is a prior final
decision for this claim, the September 1985 Board decision,
the Board is required to determine whether new and material
evidence has been presented before reopening and adjudicating
the claim of service connection on the merits. See Barnett
v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1980).
According to the law, if new and material evidence is
presented or secured with respect to a claim that has been
finally disallowed, the claim shall be reopened and reviewed.
See 38 U.S.C.A. § 5108 (West Supp. 2001); 38 C.F.R. § 3.156
(2001). When a veteran seeks to reopen a claim, the first
inquiry is whether the evidence presented or secured since
the last final disallowance is "new and material." Under
the version of 38 C.F.R. § 3.156(a) applicable to this case,
new and material evidence is defined as evidence not
previously submitted which bears directly and substantially
upon the specific matter under consideration, which is
neither cumulative or redundant, and which by itself or in
connection with the evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. See 38 C.F.R. § 3.156(a)
(2001); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
Board notes that there has been a regulatory change with
respect to the definition of new and material evidence, which
applies prospectively to all claims filed on or after
August 29, 2001. See 66 Fed. Reg. 45,520, 45,630 (Aug. 29,
2001) (to be codified at 38 C.F.R. § 3.156(a)). As the
veteran filed his claim prior to that date, the earlier
version of the law, as set forth above, remains applicable in
this case.
When determining whether a claim should be reopened, the
credibility of the newly submitted evidence is presumed. See
Justus v. Principi, 3 Vet. App. 510 (1992). In order for
evidence to be sufficient to reopen a previously disallowed
claim, it must be both new and material. If the evidence is
new, but not material, the inquiry ends and the claim cannot
be reopened. See Smith v. West, 12 Vet. App. 312, 314
(1999). If it is determined that new and material evidence
has been submitted, the claim must be reopened.
The Board notes that in November 2000 the Veterans Claims
Assistance Act of 2000 (VCAA) became law, Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, 5107). The VCAA applies to all pending
claims for VA benefits and provides, among other things, that
VA shall make reasonable efforts to notify a claimant of
relevant evidence necessary to substantiate the claimant's
claim for a benefit under a law administered by VA. The VCAA
also requires VA to assist a claimant in obtaining such
evidence. See 38 U.S.C.A. §§ 5103, 5103A. Regulations
implementing the VCAA have been enacted. See 66 Fed. Reg.
45,620 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). As set
forth below, the RO's actions throughout the course of this
appeal satisfied the requirements under the VCAA.
First, VA has a duty under the VCAA to notify the veteran and
his representative of any information and evidence needed to
substantiate and complete a claim. The veteran was informed
in a May 1996 rating decision of the evidence needed to
substantiate his claim, and he was provided an opportunity to
submit such evidence. Moreover, in a June 1996 statement of
the case and a supplemental statement of the case in August
2001, the RO notified the veteran of regulations pertinent to
service connection claims, informed him of the reasons for
which it had denied his claim, and provided him additional
opportunities to present evidence and argument in support of
his claim. The Board finds that the foregoing information
provided to the veteran specifically satisfies the
requirements of 38 U.S.C.A. § 5103 of the new statute in that
the veteran was clearly notified of the evidence necessary to
substantiate his claim for service connection. Under these
circumstances, the Board finds that the notification
requirement of the VCAA has been satisfied.
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate his claim. VA complied
with the VCAA's duty to assist by aiding the veteran in
obtaining outstanding medical evidence. VA outpatient
treatment reports and private medical records have been
received. In this regard, all known and available service,
private, and VA medical records have been obtained and are
associated with the veteran's claims file.
Essentially, the Board finds that VA has done everything
reasonably possible to assist the veteran and that no further
action is necessary to meet the requirements of the VCAA and
the applicable regulatory changes published to implement that
statute. As such, there has been no prejudice to the veteran
that would warrant further development, the veteran's
procedural rights have not been abridged, and the Board will
proceed with appellate review. See Bernard v. Brown, 4 Vet.
App. 384, 393 (1993).
In the present case, subsequent to the September 1985 Board
decision, the veteran submitted VA outpatient treatment
records and private medical reports reflecting that he had
received periodic treatment for a back disorder from February
1965 to September 1984. In addition, statements from
individuals familiar with the veteran's medical history were
submitted in support of his claim. This evidence bears
directly and substantially upon the specific matter under
consideration, i.e., whether the veteran's current back
disorder is attributable to service. Moreover, it is the
Board's opinion that this evidence is so significant that it
must be considered in order to fairly decide the merits of
the claim. See 38 C.F.R. § 3.156(a) (2001). Accordingly,
the Board finds that the veteran has submitted new and
material evidence, and his claim is reopened.
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from a
disability resulting from an injury suffered or disease
contracted in the line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in the line
of duty, in active military, naval, or air service. See
38 U.S.C.A. § 1131 (West Supp. 2001); 38 C.F.R. § 3.303
(2001). Service connection may also be granted for certain
chronic diseases, such as arthritis, when such diseases are
manifested to a compensable degree within one year of
separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113
(West Supp. 2001); 38 C.F.R. §§ 3.307, 3.309 (2001).
That an injury or disease occurred in service is not enough;
there must be a disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of chronicity of symptomatology after
service is required to support a finding of chronicity. See
38 C.F.R. § 3.303(b) (2001). Service connection may also be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. See 38
C.F.R. § 3.303(d) (2001).
Once all the evidence has been assembled, the Board has the
responsibility to evaluate the record on appeal. See 38
U.S.C.A. § 7104 (West Supp. 2001). When there is an
approximate balance of evidence regarding the merits of an
issue material to the determination of the matter, the
benefit of the doubt in resolving each such issue shall be
given to the claimant. See 38 U.S.C.A. § 5107 (West Supp.
2001); 38 C.F.R. § 3.102 (2001). In Gilbert v. Derwinski, 1
Vet. App. 49, 53 (1990), the United States Court of Appeals
for Veterans Claims (Court) stated that "a veteran need only
demonstrate that there is an 'approximate balance of positive
and negative evidence' in order to prevail." To deny a
claim on its merits, the evidence must preponderate against
the claim. See Alemany v. Brown, 9 Vet. App. 518, 519
(1996), citing Gilbert, 1 Vet. App. At 54.
The veteran's service medical records are missing from the
claims file. Throughout the course of this appeal, the RO
made several written requests in an attempt to obtain or
reconstruct the veteran's service medical records. A
November 1984 response from the National Personnel Records
Center (NPRC) in St. Louis, Missouri asserted that the
veteran's service medical records were presumably lost or
destroyed in a 1973 fire at the NPRC facility. The RO
continued to make requests, and in July 1998, January 1999,
and March 2000, the NPRC again responded that none of the
veteran's records had been found.
Private treatment records dated December 1963 to October 1967
from the Chicago Osteopathic Hospital are included in the
claims file. In March 1967, the veteran presented with
complaints of lumbar pain and sciatic radiation down his left
leg. An examination revealed that tension and mild
tenderness bilaterally at L2 and L5, and he was diagnosed
with lumbosacral instability. No reference was made to the
veteran's service, or any disorder having its onset during
active service.
Treatment reports from the Chicago College of Osteopathic
Medicine, dated February 1965 to March 1972, are of record.
During that time, the veteran sought treatment for several
conditions, including a back disorder. In April 1969, he
complained of right side lumbosacral back pain and was
diagnosed with lumbosacral instability. No reference was
made to the veteran's service.
An August 1980 hospitalization report from Olympia Fields
Osteopathic Medical Center indicated that the veteran was
diagnosed with osteoarthritis with acute lumbosacral strain
and hypertension. The etiology of the veteran's back
disorder was not discussed, nor was his time in active
service.
An October 1980 statement from Kenneth Singer, D.N., related
that the veteran had been treated since February 1979 for
abnormal body structural conditions involving the muscles and
ligaments of the lumbar, sacrum, and right leg. Dr. Singer
indicated that the veteran's lumbar pain had subsided until a
December 1979 accident worsened his condition. The veteran's
service was not mentioned in Dr. Singer's statement.
VA outpatient treatment records from VAMC Lakeside dated from
November 1982 to January 1983 are included in the claims
file. During that time, the veteran reported a history of
chronic low back pain, and in December 1982 he underwent a
lumbar laminectomy. It was noted that his history of
recurrent back pain existed over the prior 3 to 4 years. No
reference was made to the veteran's active service or an
injury incurred during service.
In a September 1984 statement, the veteran asserted that he
injured his lower back during basic training in July 1957.
He indicated that his back pain began in 1967 and that he
sought treatment at that time.
The veteran was afforded a VA orthopedic examination in
September 1984. At that time, he reported that his back
trouble began during basic training at Fort Riley, Kansas.
He stated that he went to the dispensary and was given
medication and a bedboard for treatment. He indicated that
he began receiving frequent treatment for his back in 1967.
The examiner diagnosed the veteran with a history of low back
strains with degenerative changes, postoperative with
moderate limitation of motion of the lumbar spine. He did
not comment on the etiology of the veteran's back disorder.
A January 2000 statement from the veteran's ex-wife related
that the veteran had suffered from chronic back problems
during the early 1960s and had sought medical treatment at
that time.
A January 2000 statement from the veteran's former mother-in-
law maintained that the veteran had "trouble with his back"
during the early part of the 1960s and that he continues to
have back problems.
The Board has carefully reviewed the evidence and statements
made in support of the veteran's claim and finds that the
evidence fails to support a claim of service connection for a
back disorder. The Board finds further, that the evidence in
this case is not in equipoise. The Board recognizes that the
veteran's service medical records are missing from the claims
file, and as such, the Board has a heightened duty to explain
its findings and conclusions and to carefully consider the
benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet.
App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85
(1992).
Case law does not establish a heightened "benefit of the
doubt," only a heightened duty of the Board to consider the
applicability of the benefit of the doubt, to assist the
claimant in developing the claim, and to explain its decision
when the veteran's medical records have been lost. See
Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, case law
does not lower the legal standard for proving a claim for
service connection, but rather increases the Board's
obligation to evaluate and discuss in its decision all of the
evidence that may be favorable to the veteran. See Russo v.
Brown, 9 Vet. App. 46 (1996).
While it is unfortunate that the veteran's service medical
records are missing from the claims file, the appeal must be
decided on the evidence of record. The evidence fails to
show that the veteran's back disorder had its onset during
active service. In addition, no physician has linked his
back disorder to active service or to an injury incurred
during active service. The evidence of record reflects that
the veteran first sought treatment for a back disorder in
March 1967, roughly eight years after service, and continued
to receive treatment for a back disorder, intermittently,
through September 1984. While there were several physicians
treating the veteran during that time, none linked his back
disorder to active service.
In addition, with the exception of his September 1984 VA
orthopedic examination, there is no indication that the
veteran ever reported to a physician that his back disorder
had its onset during active service. Despite telling the VA
examiner that his disorder was incurred during service, the
examiner did not render an opinion as to the etiology of the
veteran's back disorder. The mere fact that such a notation
was made in his examination report does not represent his
opinion that the veteran's disorder had its onset during
service. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995)
(a bare transcription of lay history, unenhanced by
additional medical comment, does not constitute competent
medical evidence).
In short, the Board concludes that the medical evidence does
not show that the veteran's current back disorder had its
onset during service, that arthritis was manifest to a
compensable degree within the one-year presumptive period or
that it is related to service. The Board has also considered
the January 2000 lay statements; however, neither of these
statements includes an assertion that the veteran's back
disorder had its onset during service. In point of fact,
they do not discuss the veteran's service at all, but instead
claim that he suffered from "back problems" in the early
1960s. The veteran is the only individual that has linked
his current back disorder to his time in service. However,
he does not appear from the record to have any medical
expertise, and as such, his statements regarding the origin
of his back disorder do not constitute competent evidence.
See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992)
(laypersons may be competent to provide an eye-witness
account of a veteran's visible symptoms, but they are simply
not capable of offering evidence that requires medical
knowledge).
As the preponderance of the evidence is against the veteran's
claim, service connection is not warranted. In making this
determination, the Board has considered the provisions of
38 U.S.C.A. § 5107(b) regarding the benefit of the doubt, but
there is not such a state of equipoise of the positive
evidence with the negative evidence to otherwise grant the
veteran's claim.
ORDER
New and material evidence has been submitted to reopen a
claim for service connection for a back disorder and the
appeal is granted to this extent only.
Service connection for a back disorder is denied.
S. L. KENNEDY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.